**Exhibit10.90**

 

Confidential Treatment Requested - Certain information in this exhibithas been omitted and filed separately with the commission.  Confidential treatment has been requestedwith respect to the omitted portions.

 

**AGREEMENT**

 

**This Equipment Purchase Agreement**is entered into at Hyderabad on this, **the 4thday of February, 2003**;

 

**By andbetween**

 

 

**Tata Teleservices Limited**,a company incorporated under the provisions of the Companies Act 1956, andhaving its registered office at Jeevan Bharati, 10th Floor, Tower-I,124, Connaught Circus, New Delhi- 110001, India and corporate office at 5-9-62,Khan Lateef Khan Estate, Fateh Maidan Road, Hyderabad- 500 001, Indiahereinafter referred to as “**TTL**”the expression which unless repugnant to the context herein shall mean andinclude its successors in business of the **One Part**;

 

**AND**

 

**UTStarcom Inc. (UTSI)**,**a company having its registered office at....**hereinafter referred to as “**UTSI**”the expression which, unless repugnant to the context herein shall mean andinclude its successors in business of the **OtherPart**;

 

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**TABLE OFCONTENTS**

 
| 1.            | DEFINITIONS                                                   |
|---------------|---------------------------------------------------------------|
| 2.            | SCOPE OF WORK                                                 |
| 3.            | TERM                                                          |
| 4.            | DELIVERY, PRICE AND PAYMENT TERMS                             |
| 5.            | [***]                                                         |
| 6.            | DELIVERY TERMS AND SCHEDULE                                   |
| 7.            | INSPECTION, TESTING AND ACCEPTANCE                            |
| 8.            | ACCEPTANCE                                                    |
| 9.            | LICENSES                                                      |
| 10.           | TITLE AND RISK                                                |
| 11.           | WARRANTY                                                      |
| 12.           | PROPRIETARY  RIGHTS AND RIGHTS TO SOFTWARE                    |
| 13.           | PATENT AND COPYRIGHT  INFRINGEMENT                            |
| 14.           | EXPORT, RE-EXPORT AND TRANSFER CONTROLS                       |
| 15.           | LIMITATION  OF LIABILITY                                      |
| 16.           | PROPRIETARY  INFORMATION                                      |
| 17.           | TERMINATION                                                   |
| 18.           | LAWS  AND REGULATIONS                                         |
| 19.           | DISPUTES  RESOLUTION AND ARBITRATION                          |
| 20.           | FORCE MAJEURE                                                 |
| 21.           | ENTIRE  UNDERSTANDING                                         |
| 22.           | OUT OF WARRANTY  MAINTENANCE ASSISTANCE AND TECHNICAL SUPPORT |
| 23.           | COMPLIANCE  WITH LAWS                                         |
| 24.           | CHANGES                                                       |
| 25.           | GENERAL PROVISIONS                                            |
|          |                                                          |
| **Schedules** |
|          |                                                          |
| Schedule  -A: | Responsibility  Assignment Matrix                             |
|          |                                                          |
| Schedule  -B: | Price                                                         |
|          |                                                          |
| Schedule -C:  | Software License                                              |
|          |                                                          |
| Schedule -D:  | Non Disclosure Agreement                                      |
|          |                                                          |
| Schedule -E:  | Product Description                                           |
|          |                                                          |
| Schedule  -F: | Acceptance  Test Procedure                                    |
|               |                                                               |  |

 

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# **1.             DEFINITIONS**

 

For the purpose of this Order, the terms below shall have the followingdefinitions:

 

“**Acceptance**”

 

“Acceptance” means successful completion of tests of theEquipment/Element performed by UTSI and/or TTL in accordance with theAcceptance Test procedure listed in the Schedule F (Acceptance TestProcedure).  In the event that theAcceptance Tests of any Equipment/Element have not been completed within [***]days after the Shipment due to reasons solely attributable to TTL then suchEquipment/Element shall be deemed to have achieved Acceptance on the expiry ofsuch [***] day period (“Deemed Acceptance”).

 

“**Acceptance Testing**”

 

“Acceptance Testing” means that the Equipment has been installed,commissioned and integrated, within the quality parameters and the mutuallyagreed specifications have been met. These tests shall have to be carried out, by UTSI jointly with TTL or byTTL as applicable.  On successfulAcceptance, TTL shall issue a Certificate of Acceptance, in case the agreedtests are successfully completed, no later than [***] days of completion ofsaid tests.  In the event of DeemedAcceptance, UTSI shall intimate TTL of the same in writing.

 

“**Commercial Service**”

 

“Commercial Service” means the earliest date when any of TTL’ssubscribers or customers begin to use the Product.  Commercial Service shall exclude trial runs, soft launch or anyother such similar use the period of which shall not exceed [***] days.

 

“**Documentation**”

 

“Documentation” means all user manuals, training manuals, Softwarerelease notes, and other similar, written materials in English provided withthe System, as may be updated by UTSI from time to time.

 

“**Delivery**”

 

“Delivery” shall mean Shipment as defined in this Agreement either onUSD FCA basis or INR DDP basis (as defined in this Agreement).

 

“**Effective Date**”

 

“Effective Date” means the date by which duly authorized officers ofboth Parties have signed this Agreement.

 

“**Equipment/ Element**” shallmean the Hardware, the Licensed Material, and parts thereof including cables,and spares, as ordered to be supplied to TTL. The same shall mean and include the following

 

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network elements, contained in, in whole or part, [***] and itsassociated elements as per Schedule E (**ProductDescription**) attached hereto which on stand-alone basis is capableof being tested, commissioned and integrated into a Sub-Network or Network andis able to be deployed for Commercial Service.

 

“**Non-Disclosure Agreement**”

 

“Non-Disclosure Agreement” means the Mutual Non-Disclosure andConfidentiality Agreement between the Parties. “Equipment/Element” – ScheduleD.

 

“**Party**”

 

“Party” shall mean either Tata Teleservices Limited (“TTL”) having itsCorporate office at K.L.K Estate, Fateh Maidan Rd, Hyderabad 500001 registeredunder or the UTSTARCOM Inc (“UTSI”) having its corporate office at 1275, HarborBay Parkway, Alameda; CA 94502 USA. Together TTL and UTSI are referred to as “Parties”.

 

“**Product**”

 

“Product” means collectively all hardware and software components andsubsystems provided by UTSI as more fully described in Schedule E (**Product Description**) attached hereto.

 

UTSI “**Shipment**”

 

Shall mean the date of delivery of Products, in whole or part, asapplicable, under an Order to the TTL nominated freight forwarder/carrier orthe Carrier evidenced by the airwaybill date, for such Orders where thedelivery Terms are on FCA basis.

 

In the event the delivery Terms under the Order are on INR DDP basis,then Shipment shall mean the date of delivery of the Products, in whole orpart, as applicable, under such Order, to the TTL nominated warehouse in India,evidenced by the delivery challan date.

 

“**Software**”

 

“Software” means the executable (object code) version of software asdeveloped by and/or licensed to UTSI for use in the Product.

 

“**Software License Agreement**”

 

“Software License Agreement” means the Software License Agreementbetween the Parties.

 

“**Warranty Period**”

 

“Warranty Period” means- a period equal to [***] months starting on thedate of Shipment or a period [***] from the date of Acceptance of theEquipment/ Element which ever expires later.

 

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# **2.             SCOPE OF WORK**

# ** **

This Agreement shall govern Purchase Orders (the “Order”) submitted byTTL to UTSI for the supply by UTSI of [***] Products in accordance with thespecifications, in the identified areas in the territory of [***] for thepurposes of enabling provision of Basic Telecom Services and Value AddedServices by TTL (“Network”).  Detailedscope of work should be read in conjunction with the Responsibility AssignmentMatrix as attached herein in Schedule A.

 

In the event that Purchase Orders are placed for any Products notincluded in the Schedule E then, both Parties may agree that thisAgreement shall govern those as well and such Products shall be added to theSchedule E at that time.

 

# **3.             TERM**

# ** **

The term of this Order shall commence on the Effective Date and unlessotherwise terminated as provided herein, shall continue in full force andeffect for a period of [***]and may be extended upon mutual agreement.  During this time, TTL and UTSI mayre-negotiate prices and commercial terms as may be required from time to time

 

# **4.             DELIVERY,PRICE AND PAYMENT TERMS**

# ** **

## 4.1           Pricingand Shipment

##  

Prices for the Product and Services purchased and/or licensed hereundershall be as described in **Schedule B(Price)** to this Agreement which shall be either on USD FCA or INRDDP basis (Incoterms 2000) (the “Prices”) based on mutual agreement.

 

Prices, (where the Delivery Terms are on FCA basis) for the supply ofthe Product are in U.S. Dollars, (FCA, Shanghai, China for Equipment/element)and in U.S. Dollars, (FCA, JFK, USA for Software). (Incoterms 2000).

 

For export of Equipment/Element, on FCA basis, Delivery shall be FCA,Shanghai, China facility of the carrier designated by TTL in the Order, or inthe absence of such designation, the carrier designated by UTSI (the “Carrier”)in accordance with the above mentioned Incoterms 2000.

 

## 4.2           Taxes,Duties and Levies

##  

For export from China/USA on FCA basis, the Prices [***] which may belevied or charged in India, however, any [***] shall be solely to [***].  Any such amounts charged, levied orassessed, whether withheld at source or otherwise, will be added to the pricesotherwise chargeable to and payable by [***] pursuant to this Agreement onlyfor future Orders and for Orders executed after the imposition of fresh taxthat lead to more amount of taxes being imposed.

 

However, if any taxes on income are required by law to be deducted fromany payment required to be made by TTL to UTSI hereunder, the amount of suchpayment shall be deducted as per Government Of India regulations and relevantTDS certificates will be issued to UTSI and payment shall be made to UTSI netof such amount.

 

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For Shipments made on DDP basis, the Prices shall include [***] (asapplicable).  [***]

 

## 4.3           Formof Payment

##  

Payments for Products and Services shall be made in U.S. Dollars viawire transfer for Orders placed on FCA basis and in India Rupees for Ordersplaced on DDP basis.

 

**First Installment** —[***] of the Order value shall be payable upon Acceptance or [***] days fromShipment against each Order or part thereof, prorated for shipment, whicheveris earlier, provided delay in Acceptance is not on account of UTSI (in whichcase payment of First Installment shall be at Acceptance irrespective of [***]days).

 

**Second Installment**— For FCA USD Orders — Remaining [***] of the Order value, shall be payable notlater than [***] months from the due date of the First Installment, or shall bedue on the [***] day of the Shipment whichever is earlier, provided delay inAcceptance is not on account of UTSI (in which case payment of SecondInstallment shall be at Acceptance irrespective of [***] days).

 

**Second Installment**— For INR DDP Orders — Remaining [***] of the Order value, shall be payable atthe expiry of [***] months from the due date of the First Installment, provideddelay in Acceptance is not on account of UTSI (in which case payment of SecondInstallment shall be at [***] months from Acceptance irrespective of [***]days).

 

## 4.4           Whenpayment of any part of the Order becomes due to UTSI in accordance with theprovisions of this Clause 4, the UTSI shall forward to TTL an appropriateinvoice (Invoice) which shall specify a full description of each item of theEquipment/ Element, Software or Service delivered, together with the followingdocuments:

##  

For drawing payment due on Delivery of Equipment/Element/Software:

 

Acceptance of the Purchase Order and copies of:

 

i)                 Packing List

 

ii)              Airway Bill/DeliveryChallan (as pplicable)

 

iii)           Certificate of Origin(as applicable)

 

iv)          Manufacturer’s TestReport/Factory Acceptance Test Report as per agreed quality acceptance plan.

 

v)             AcceptanceCertificate by TTL on completion of Acceptance Tests or notification of DeemedAcceptance

 

vi)          A statement by theContractor for subsequent performance of the Equipment as per theSpecifications and standards prescribed in this Agreement.

 

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**Payment for the associated Softwareagainst each Equipment/Element so invoiced shall be payable against thesubmission of the relevant documents as described above**.

 

## 4.5           Inthe event of delayed payment for more than a period of [***] days after theInvoice is payable and due, then UTSI may impose interest payable @ of [***] ofthe invoice amount so delayed, pro-rated on a daily basis.  This rate shall apply for both INR and USDOrders.

##  

# **5.             [***]**

# ** **

[***]

 

# **6.             DELIVERYTERMS AND SCHEDULE**

# ** **

## 6.1           TheOrder will be delivered according to the schedule set forth in the applicableOrder..

##  

## 6.2           Deliveryof any Product or part thereof originating outside of India will be FCA,Shanghai, China or FCA, JFK, USA, as applicable (INCOTERMS 2000) and Deliveryof any Equipment originating within India will be the TTL designated warehouseas specified in the applicable Order (“Delivery”).

##  

## 6.3           LiquidatedDelay Damages

##  

## IfShipment/Delivery of any Product or part thereof is delayed beyond the datespecified in the Order or as mutually agreed for such Shipment (“Delay”), dueto any cause which is attributable to UTSI other than Force Majeure (theoccurrence which shall be proved to the reasonable satisfaction of TTL inwriting), beyond the mutually agreed time frame (Delayed Portion), UTSI shallbe liable to pay Liquidated Damages to the tune of [***]

##  

# **7.             INSPECTION,TESTING AND ACCEPTANCE**

# ** **

UTSI shall perform a structured testing programme in accordance withthe provisions of Schedule F which shall be sufficient to demonstrate tothe satisfaction of TTL that the Equipment, or any Element meet therequirements of the Agreement and to achieve all Acceptances of theElement.  Such testing shall compriseoff-site tests and on-site Acceptance tests to achieve Acceptance.  The Acceptance Test Plan shall be proposedby UTSI and shall be reviewed and approved by TTL.  Same is detailed in Schedule E.

 

## Testingat UTSI’s factory (“Factory Acceptance Testing”)

##  

### 7.1.1        Thepurpose of Factory Acceptance Testing is to verify that the Equipment/Elementproduction is satisfactory and that the Equipment/Element is ready to beshipped to TTL.

###  

### 7.1.2        UTSIshall perform Factory Acceptance Testing in accordance with the test Plan ofUTSI prior to Shipment.

###  

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### 7.1.3        TTLshall have the right to witness Factory Acceptance Testing.  An inspection plan will be agreed to by UTSIand TTL so as to minimise disruption to UTSI’s activities and overall projectschedule.

###  

### 7.1.4        TTLmay witness the production and testing procedures in general to verify thatUTSI is deploying all quality controls to deliver the Equipment/Elementconforming to specifications and standards specified in the Agreement.  TTL shall bear all the costs and expensesincluding travelling, boarding, lodging expenses and out of pocket expenses inrespect of such personnel sent to witness such testing.

###  

### 7.1.5        Notwithstandingthe fact that TTL has witnessed Factory Acceptance Testing or not, the UTSIshall provide to TTL the Factory Acceptance Test Results and will make best toprovide the same in [***] days of the completion of such testing.

###  

### 7.1.6        Notest or examination of any of the Equipment/Element whether witnessed, agreedor otherwise organised or carried out by TTL shall release UTSI from itsobligation to carry out the On-Site Tests or to perform any of its otherobligations as set out in and in accordance with the provisions of theAgreements.

###  

## 7.2           Installation,Commissioning and Acceptance Testing on Site

##  

### 7.2.1        Thepurpose of the Element Acceptance Tests at site is to show that the Equipment/Element meets the Specifications and technical requirements and is ready to beintegrated into the Sub-Network or Network as the case may be.

###  

### 7.2.2        AcceptanceTests are performed in accordance with Schedule F as agreed to in thisAgreement.  An Acceptance Report will becompiled for each of the Equipment/Element accepted as the case may be.

###  

### 7.2.3        Equipment/ElementAcceptance is based on tests defined in the Acceptance Test Procedures.  The criteria for passing these tests arethat all major diagnostic test results with “All Tests Pass (ATP)” andrealization of features/functionalities.

###  

### 7.2.4        Incase of any errors or faults during testing that affect Commercial Service tocustomers (Severity 1), the Acceptance Certificate shall not beissued.  In case of only minor errors orfaults that do not affect Commercial Service the Acceptance Certificate withpunch list of issues to be resolved shall be issued by TTL within [***] days ofcompletion of such tests.  UTSI and TTLshall jointly agree on the time frame within which these issues are to beresolved.

###  

### 7.2.5        UTSIshall provide, no less than [***] days prior to commencement of Tests, forTTL’s review and approval the following:

###  

•                  Aschedule of detailed test Procedures to be performed as per Schedule F;and

 

•                  Documentation,in form and substance reasonably satisfactory to TTL, of testing to verify thetechnical and performance requirements of the Element,.  TTL has the right to seek performance ofadditional Tests as mutually agreed.

 

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### 7.2.6        OnTTL’s review and written approval, the above documentation shall, as from thedate of such written approval, be deemed to have become a part of thisAgreement and this Agreement shall thenceforth be interpreted and construedaccordingly.

###  

### 7.2.7        Aftercompletion of Installation of each site, TTL shall perform on-siteAcceptance Tests of the Equipment/Element thereat in accordance with the testspecifications.

###  

### 7.2.8        Within[***] days of the completion of the relevant Acceptance Tests TTL shall eitherinform UTSI of the failure of the Acceptance Tests in accordance with termsherein or issue UTSI with a dated certificate of Acceptance in respect of theElement/Equipment in accordance with 7.2.4.

###  

### 7.2.9        Ifany aspect of the Element (as the case may be) fails to pass the AcceptanceTests, then:

###  

a)              the failure of theElement to pass the Acceptance Tests shall be notified in writing to the UTSIby TTL, giving reasons for such failure, within [***]days of the completion ofthe relevant tests; and

 

b)             the UTSI shallforthwith implement at its own cost and expense such alterations ormodifications to the Element as are necessary and in any case, within [***]working days or any longer period mutually agreed upon to enable the relevantAcceptance Test to be repeated; and

 

c)              The UTSI shallrepeat the Acceptance Tests so as to achieve Acceptance; and

 

d)             TTL may, at itsoption, carry out such alterations or modifications at UTSI’s cost (as iscommercially reasonable under the circumstances) so as to achieve Acceptance.

 

### 7.2.10      Notwithstandingany provision to the contrary contained in the corresponding Order, TTL shallhave the right to remedies or material damages as specified in the Certificateof Contractual Compliance.

###  

# **8.             ACCEPTANCE**

# ** **

Acceptance tests shall be performed by UTSI or and TTL as the casemaybe in accordance with the Acceptance Test procedure to be provided by UTSIand approved by the TTL prior to the commencement of the tests.  TTL undertakes and agrees to ensure thatthere will be no delay in the commencement or performance of the Acceptance byany act or omission of the TTL or any of TTL’s employees, agents orrepresentatives.

 

# **9.             LICENSES**

# ** **

UTSI hereby grants TTL a non-exclusive, non-transferable license to usethe Software and the Documentation solely in connection with the Productspurchased by TTL pursuant to this Agreement, at the Site(s) and for the purposeand in the manner for which the Product was designed

 

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and intended by UTSI, all in accordance with the software licenseprovisions set forth in **Schedule C**attached hereto.  In no event shall TTLhave the right to market, sell, lease, license, sublicense, assign, distributeor otherwise transfer said license or any part thereof without the expressprior written consent of UTSI except in the event of a sale (in part or whole),merger, strategic alliance or business arrangement of any kind wherein TTLceases to do business in it’s own name and a new entity takes over the businessand the Equipment.  TTL shall not removenor alter, nor permit the removal or alteration of, any UTSI or third-partytrademarks, copyright notices, tags, labels or other identifying markingsplaced on any Products, products, packages or containers provided hereunderwithout the prior written consent of UTSI.

 

# **10.          TITLE AND RISK**

# ** **

Title to the Product and Risk of loss to the Product shall pass to TTLin accordance with Incoterms 2000 at the FCA Shanghai, China or FCA JFK, USA asapplicable where the Orders are on FCA basis. For Shipments on DDP basis Title to the Product and Risk of loss to theProduct shall pass to TTL in accordance with Incoterms 2000 at the TTLdesignated warehouse specified in the Order.

 

# **11.          WARRANTY**

# ** **

## 11.1         Subjectto the terms and conditions hereof, UTSI warrants the Products manufactured byUTSI and provided to TTL pursuant to this Order, working as separate items andwithin configurations disclosed in writing to UTSI by TTL, against defects inmaterial, workmanship and design that materially affect its performance(“Defects”) for the following periods (“Warranty Period(s)”), respectively:

##  

Equipment and Software for a period of [***] months from the date ofShipment or [***] months from the date of Acceptance of the said Equipment,whichever expires later, operating in configurations contemplated by theParties, against defects its performance in accordance with the specifications(Defects), which ever is later UTSI will promptly effect the repair orreplacement of any equipment delivered hereunder by UTSI that demonstrates,during such Warranty Period, to have a Defect.

 

## 11.2         Warrantyof Good Title

##  

UTSI will deliver good title to all equipment provided under thisAgreement (including any additional purchases), free from any and all liens,claims or encumbrances.

 

## 11.3         Conformityto Specifications

##  

UTSI warrants that during the Warranty Period all equipment willconform to and perform according to the specifications.  The UTSI warrants that the Equipment will benew and unused (except for equipment used for testing required under theAgreement/ Order) when delivered and, subject to the provisions of thisClause 7, will be free from defects in materials and workmanship and willfunction substantially (excluding minor non-service affecting) inaccordance with the applicable Specification during the Warranty Period.

 

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## 11.4         Warrantyand Replacement Parts

##  

UTSI warrants, on the same terms as those set forth above with respectto the repaired or replacement Field Replacement Unit (“FRU”) for [***] monthsfrom Delivery to FCA point or up to the term of the original warranty of thepart that is being replaced, whichever is longer.  UTSI shall also bear all costs including duties, taxes,transportation costs, transit insurance premium and other associated costs(including de-installation and re-installation) while sending outdefective parts and receiving repaired/replaced parts.

 

## 11.5         Ownershipof Replaced Parts

##  

Except as provided elsewhere in this Agreement, FRUs replaced by UTSIwill become the property of UTSI.  FRUsdelivered as replacement by UTSI will remain the property of TTL.

 

## 11.6         PassThrough of Warranties

##  

UTSI will, to the extent possible, make available to TTL the benefit ofany warranties or similar rights on any equipment or part thereof produced bythird Parties which equipment is integrated in items.

 

## 11.7         WarrantyClaim Procedures

##  

The limited warranties set forth in Clause 11 are subject to TTL’swritten notification, rendered during the warranty periods defined herein, toUTSI of an alleged Defect.  UTSI willrepair, replace, amend, or alter in accordance with UTSI’s standard practiceswith respect to such equipment.

 

## 11.8         Disclaimer

##  

EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, UTSI NEITHER MAKESNOR ASSUMES ANY LIABILITY UNDER ANY WARRANTIES (WHETHER IMPLIED OR PURSUANT TOSTATUTE OR COMMON LAW) ON OR WITH RESPECT TO EQUIPMENT PROVIDED HEREUNDER ORANY COMPONENT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED CONDITIONS ORWARRANTIES OF MERCHANTABILITY. Performance by UTSI of the warranty services described in this Clause 11will constitute fulfillment of all of UTSI’s obligations in respect of thewarranties contained in this Clause 11, whether based on contract, orotherwise with respect to the equipment delivered to TTL hereunder.

 

# **12.          PROPRIETARYRIGHTS AND RIGHTS TO SOFTWARE**

# ** **

## 12.1         Subjectto this Agreement, UTSI grants to TTL non-exclusive, non-transferable rights touse the Software (as defined below) for TTL’s use solely in conjunction withthe UTSI Equipment.  The rights grantedherein shall be for use of the Software in object code format only and solelyas provided in Section 12.1.2 below.

##  

### 12.1.1      TTLacknowledges that any software supplied by UTSI and TTL hereunder (“Software”)is subject to the proprietary rights of UTSI and/or UTSI’ vendor(s).  UTSI or its vendor(s), as the case may be,will retain title to all of the Software. Subject to performance by TTL of these Terms and Conditions, UTSI herebygrants to TTL and TTL hereby accepts from UTSI the limited, nontransferable,nonexclusive rights (subject to Article 9 above) to use the Softwaresolely

###  

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### in theoperation of UTSI Equipment purchased hereunder, to commence on Delivery of theSoftware to TTL and payment therefor by TTL and to last for the life of theEquipment purchased hereunder.

###  

### 12.1.2      Exceptas permitted by this section, TTL will not (i) copy or duplicate, orpermit anyone else to copy or duplicate, any part of the Software, or(ii) create or attempt to create, or permit others to create or attempt tocreate, by reverse engineering or otherwise, the source programs or any partthereof from the object programs or from other information made available underthis Order (except as permitted by law). TTL may (at its own expense) make two copies of the object program forarchive purposes.

###  

### 12.1.3      TTLwill not, directly or indirectly, sell, transfer, offer, disclose, rent, lease(as lessor), or license the Software to any third party, except that subject tothese Terms and Conditions, and subject to Article 9 above, TTL maytransfer its rights to use the Software to a third party purchaser, lessee oruser of the Equipment purchased hereunder the right solely to use the softwarein the operation of the Equipment purchased hereunder.

###  

### 12.1.4      UTSIwill provide free of cost any software defect fixes during the warranty period.

###  

### 12.1.5      SoftwareUpgrades shall be provided, for a period of [***] years provided TTL buysextended warranty/AMC services.

###  

# **13.          PATENT AND COPYRIGHT INFRINGEMENT**

# ** **

## 13.1         Defenseof Claims

##  

UTSI agrees (i) to resist or defend at its own expense any claimfor royalty payments or for equitable relief or damages against TTL based on anallegation that the manufacture of any Item or combination of Items deliveredhereunder or the use (but only in accordance with documentation provided by UTSI),lease, or sale thereof or that any documentation delivered by UTSI hereunderinfringes any patent or copyright, (ii) to pay any royalties and othercosts related to the settlement of such request and (iii) to pay the costsand damages, including attorney’s fees and litigation costs, finally awarded asthe result of any suit based on such claim, provided that UTSI will not beliable for such damages to the extent resulting from the failure of TTL tonotify UTSI promptly of any such claim or from TTL’s failure to providereasonable assistance or information requested in writing by UTSI in connectionwith the defense of any such claim.

 

## 13.2         IndemnityAgainst Injunctions

##  

In the event that, as a result of any suit for patent or copyrightinfringement (i) prior to Delivery, the manufacture of any item suppliedby UTSI hereunder is enjoined, or (ii) after Delivery, the use, lease orsale thereof is enjoined, then UTSI will, at its option and expense, either(a) negotiate a license or other agreement with the plaintiff so that suchItem is no longer infringing, (b) modify such item suitably or substitutea suitable item therefor, which modified or substituted item is not subject tosuch injunction, and to extend the provisions of this Clause thereto, or if (a)or (b) cannot be effected by UTSI’ reasonable and diligent efforts,(c) repurchase enjoined Items at their then current value on TTL’s auditedaccounts.

 

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UTSI will indemnify TTL to such extent from any and all damages andcosts (including settlement costs agreed to by TTL and UTSI) finally awarded orso agreed upon for infringement of any patent or copyright in any suitresulting from Other Claims, and from reasonable expenses incurred by TTL indefense of such suit if UTSI does not undertake the defense thereof within areasonable period.

 

## 13.3         CrossIndemnity

##  

Notwithstanding the above, UTSI will not be liable for any damages orcosts resulting from claims to the extent that any of the following constituteseither direct or contributory infringement of any patent (such claims beingcollectively referred to herein as “Other Claims”):

 

i)                                         UTSI’compliance with TTL’s specific Equipment or Software design instructions;

 

ii)                                      theuse of any item in combination with products other than those that are part ofthe Network equipment; or

 

iii)                                   amanufacturing or other process carried out by or through TTL and utilizing anyitem.

 

TTL will indemnify UTSI to such extent from any and all damages andcosts (including settlement costs agreed to by TTL and UTSI) finally awarded orso agreed upon for infringement of any patent or copyright in any suitresulting from Other Claims, and from reasonable expenses incurred by UTSI indefense of such suit including attorneys’ fees if TTL does not undertake thedefense thereof.

 

# **14.          EXPORT, RE-EXPORTAND TRANSFER CONTROLS**

# ** **

TTL hereby acknowledges that the Equipment and technology or directproducts thereof (hereafter referred to as “Products and Technology”), suppliedby UTSI hereunder are subject to export controls under the laws and regulationsof the United States and Japan.  TTLshall comply with such laws and regulations and agrees not to export, re-exportor transfer UTSI Products and Technology without first obtaining all requiredUnited States and Japanese Government authorizations or licenses.  UTSI and TTL each agree to provide the othersuch information and assistance as may reasonably be required by the other inconnection with securing such authorizations or licenses, and to take timelyaction to obtain all required support documents.

 

End-Use/User: TTL hereby certifies that none of the Products andTechnology supplied by UTSI to TTL hereunder will be exported, re-exported, orotherwise transferred by TTL: A) to a United States or Japan embargoed orhighly restricted destination,; B) for use by or for any militaryend-user, or in any military end-use located in or operating under theauthority of any country; C) to any entity that is engaged in the design,development, production, stockpile or use of nuclear, biological or chemicalweapons or missiles; D) to Parties without first obtaining all requiredUnited States or Japanese Government authorizations or licenses. TTL’sobligation under this clause shall survive the expiration or termination ofthese Terms and Conditions.

 

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# **15.          LIMITATIONOF LIABILITY**

# ** **

Notwithstanding any other clause in this Agreement, in no event willUTSI be liable for [***]

 

Notwithstanding any other clause in this Agreement, the remedies of TTLand UTS set forth herein are exclusive and the liability of UTS for a breach ofUTS’ obligations with respect to the Equipment (including warranty obligations)shall be limited [***]

 

# **16.          PROPRIETARYINFORMATION**

# ** **

## 16.1         UTSIand TTL, to the extent of their contractual and lawful right to do so, willexchange proprietary or confidential information as reasonably necessary foreach to perform its obligations hereunder. All information relating to these Terms and Conditions and any PurchaseOrders accepted hereunder provided by either party to the other, whether oralor written and all software will be and is hereby deemed to be confidential andproprietary information (“Proprietary Information”).

##  

## 16.2         Exceptas set forth in Section 15.3 below, a party receiving ProprietaryInformation pursuant hereto (the “Receiving Party,” which shall include thefinal end user customers) will not, without the prior written consent of theparty disclosing such information (the “Disclosing Party”), (i) use anyportion of the Proprietary Information for any purpose other than the purposeof these Terms and Conditions, or (ii) disclose any portion of theProprietary Information to any person or entities other than the employees andconsultants of the Receiving Party (and UTSI’ subcontractors) who reasonablyneed to have access to the Proprietary Information in connection with thepurposes of these Terms and Conditions and who have agreed to protectProprietary Information as though they were a party to these Terms andConditions.

##  

## 16.3         AReceiving Party will not be liable for disclosure of Proprietary Information,or part thereof, if the Receiving Party can demonstrate that such ProprietaryInformation (i) was in the public domain at the time it was received orsubsequently entered the public domain through no fault of the Receiving Party;(ii) was known to or is in the lawful possession of the Receiving Party atthe time of receipt; or (iii) is disclosed more than [***] years, except[***] years for software, after the date of receipt of the particularProprietary Information by the Receiving Party.  In the event of any legal action or proceeding or asserted legalrequirement for disclosure of Proprietary Information furnished hereunder, theReceiving Party will promptly notify the Disclosing Party and, upon the requestand at the expense of the Disclosing Party, will cooperate with the DisclosingParty in lawfully contesting such disclosure. Except in connection with any failure to discharge its responsibilitiesunder the preceding sentence, the Receiving Party will not be liable for anydisclosure pursuant to court order.

##  

## 16.4         ProprietaryInformation will remain the property of the Disclosing Party and will, at theDisclosing Party’s request and after it is no longer needed for the purposes ofthese Terms and Conditions, promptly be returned thereto or be destroyed,together with all copies made by the Receiving Party and by anyone to whom suchProprietary Information has been made available by the Receiving Party inaccordance with the provisions of this section.

 

14

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# **17.          TERMINATION**

# ** **

This Agreement may be terminated by either party:

 

a)                                      ifthe other party is in material breach of this Agreement and fails to cure suchbreach within [***] days of receiving written notice of the breach.  Provided that the breaching party continuesto make diligent and good faith efforts to cure the breach, the breaching partyshall be granted a reasonable extension of time to cure the breach.

 

b)                                     upon[***] days prior written notice if any of the following circumstances remainuncured: (i)if the other party becomes insolvent or unable to pay its debts in the ordinary course of its business; (ii) if a voluntary orinvoluntary petition under applicable bankruptcy laws is filed by or againstthe other party; (iii) if a receiver is appointed for the business affairsof the other party or the other party makes an assignment for the benefit ofcreditors without permission of the other party; or (iv) if the otherparty liquidates or ceases doing business as a going concern.

 

Any provision of this Agreement which by its nature survivestermination shall survive termination of this Agreement.

 

# **18.          LAWS ANDREGULATIONS**

# ** **

The validity, construction and performance of this Contract includingits enforcement shall be governed by and interpreted in accordance with thelaws of India.  Subject toArticle 19 (Dispute Resolution and Arbitration), the Parties agree tosubmit themselves to the jurisdiction of Courts in Mumbai.

 

# **19.          DISPUTESRESOLUTION AND ARBITRATION**

# ** **

## 19.1         Ifany dispute, difference, controversies or claims of any kind whatsoever shallarise between the Parties this Contract including any question regarding itsexistence, validity or termination of the execution of the works, whetherbefore or after the termination, abandonment or breach of this Contract, theParties shall seek to resolve any such dispute or difference by mutualconsultation.  The Parties will make theirbest endeavor to resolve disputes, differences, controversies or claims bymutual consultation and deliberation within [***] days.  In case of failure, the issues will bereferred to the respective senior managements of the Parties.  They shall strive to resolve all suchdisputes, differences, controversies, or claims within a further period of  [***] days.

##  

## 19.2         Ifthe Parties fail to resolve such dispute or difference, controversy, or claimby mutual consultation and also by reference to their respective CEOs, theneither Party may give the other, a formal notice in writing that the dispute,difference, controversy, or claim exist specifying its nature, the point(s) inissue and its intention to refer such disputes, differences, controversies, orclaims to arbitration under the Arbitration and Conciliation Act, 1996.

##  

## 19.3         Ifthe Parties fail to resolve such disputes, differences, controversies, claimsby further consultation within a period of [***] days from the date upon whichsuch notice of disputes

 

15

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## has beengiven, the disputes, difference, controversies, claims shall be referred to andfinally settled by arbitration under the Arbitration and Conciliation Act,1996.

##  

## 19.4         Itis agreed between the Parties that each Party shall have the right to nominateone arbitrator each, and the said two so nominated arbitrators shall appointthe arbitrator who shall act as the Presiding Officer of the said ArbitralTribunal.  The aforementionedarbitrators shall be professionally qualified to deal with the intricacies andthe technicalities of the disputes, differences, controversies, claims or anyother technical issues.

##  

## 19.5         TheParties agree to seek to mutually designate an independent technical expert inthe field to act as assist the Arbitral Tribunal, if so required.  If they fail to agree in [***] days, anyparty can make an application to the Chief Justice of Mumbai High Court forsuch appointment.

##  

## 19.6         Thearbitration shall be held in **Mumbai, India**or some other mutually agreed location and the arbitration proceedings shall beconducted in the English language.  Thearbitrators will be requested to give their award in [***] days’ time.

##  

## 19.7         Theaward shall be final and binding on the Parties.

##  

## 19.8         Theaward shall be entered in any court having jurisdiction and any such court mayorder enforcement of the award against the Parties and their respectivesuccessors and permitted assignees.

##  

## 19.9         EachParty shall be responsible for it’s own costs during arbitration process suchas legal costs, travel and stay costs etc. only the inseparable costs ofarbitration such as arbitrator’s fees and venue expenses shall be borne equallyand jointly.

##  

## 19.10       Inthe course of arbitration, both Parties shall continue to execute this Contractin so far, as is reasonably practical. This clause shall survive termination of this Contract.

##  

# **20.          FORCE MAJEURE**

# ** **

## 20.1         Anyobligation of any Party to this Order, other than obligations for the paymentof money, will be suspended during any period in which such Party is unable toperform such obligation by reason of Force Majeure, but only to the extent andfor the duration of such inability to perform, and any applicable deadlines orexpiration dates will be extended or delayed by the duration of suchinability.  For the purposes hereof,“Force Majeure” means war (including acts of terrorism and warlike acts, evenif no formal state of war has been declared), civil commotion, sabotage, fire,flood, natural calamities, strikes and lockouts, Act of State or direction fromgovernmental authority requiring the suspension of work hereunder, epidemics orquarantine or import or export restrictions (as are not limited to theestablishments and facilities of the Parties). A Party subject to a Force Majeure will promptly notify the other givingdetails of the nature of the event and the expected period of its duration andwill take all reasonable steps to mitigate the effects thereof.

 

16

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## 20.2         Whenthe Force Majeure event ceases, the Parties are to resume theirresponsibilities under the terms of this Agreement within [***] working days,or, if the same is not possible within said time period, then as soon asreasonably and commercially possible.

##  

## 20.3         Inthe event that a Force Majeure event materially frustrates this Agreement andhas prevented, or if the Parties reasonably expects such event to prevent,timely performance hereunder for a period of more than [***] months, then theParties may temporarily take reasonable steps to mitigate its potential damage,including procurement of equipment and software from such other sources as willbe satisfactory to meet requirements of this Agreement for the period of theForce Majeure.  In the event that a ForceMajeure event materially frustrating this Agreement continues, or the Partiesare unable to perform due to a Force Majeure, for more than [***] months,either Party may terminate this Order without further obligation by eitherParty, provided, however, that any outstanding amounts due UTSI shall be paidby TTL and UTSI shall undertake to use reasonable efforts to resell for theaccount of TTL any unusable items returned by TTL to UTSI.

##  

# **21.          ENTIREUNDERSTANDING**

# ** **

These Terms and Conditions supersede and replace any and all prioragreements, understandings or arrangements, whether oral or written, heretoforemade between the Parties relating to the Order, and together with the Exhibitsattached hereto constitutes the entire understanding of the Parties withrespect to the Order.  These terms andconditions contained in the Order may not be altered, interpreted or amendedexcept by an express written agreement or change order signed by both Partieshereto.

 

# **22.          OUTOF WARRANTY MAINTENANCE ASSISTANCE AND TECHNICAL SUPPORT**

 

## 22.1         UTSIagrees that it shall for the operational and commercial life of the product,supplied hereunder, which in any case shall not be less than [***] years fromDelivery:

##  

### 22.1.1      keepavailable all necessary spare parts for the Equipment, provision of any suchspare parts on terms and conditions, including the prices, to be mutuallyagreed upon in good faith; and

###  

### 22.1.2      repairany defective Equipment out of warranty on terms and conditions, including theprices, to be agreed upon.

###  

### 22.1.3      Incase of obsolescence, UTSI shall give a notice of not less than [***] daysprior to discontinuing any Equipment of the type purchased hereunder.

###  

### 22.1.4      UTSIshall submit to TTL a detailed proposal for Out of Warranty TechnicalAssistance and Software Maintenance support. Subject to the above conditions, TTL may select and purchase additionaltechnical support for UTSI Equipment at mutually agreed prices.  The UTSI Material Return Center coordinatesrepair services for UTSI-supplied equipment.  TTL must obtain a Return Material Authorization (RMA) number foreach FRU prior to returning the unit to UTSI. There will be no charge for repair of FRUs still covered by the originalwarranty or by UTSI’ optional extended warranty services if TTL has elected suchextended warranty services.  Repaired

 

17

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### moduleswill be warranted for [***] days after Shipment or the remainder of theoriginal warranty period, whichever is greater.  TTL will enter into UTSI’ standard Technical Assistance andSoftware Maintenance Support Agreement at prices to be mutually agreed.

###  

# **23.          COMPLIANCEWITH LAWS**

# ** **

Both Parties shall comply with respectively binding laws and provisionsof this Agreement and fully indemnify the other Party with regard to anywillful or otherwise non-compliance.

 

CHANGES

 

## 23.1         TTLmay request a reasonable number of quotations from UTSI for the costs ofpotential changes to Specifications or scheduling requirements set forth in theSchedule (“Change Request”).  UTSI willpromptly make such quotes to TTL and will negotiate those quotes with TTL ingood faith.  UTSI may, on its owninitiative, propose such changes by providing TTL with such a quotation, inwhich event TTL will promptly respond to UTSI’ proposal.

##  

## 23.2         Ifany such Change Request causes an increase or decrease in the cost of, or thetime required for, performance, the Parties will equitably adjust the Priceand/or Delivery date, and will amend the Order in writing accordingly.  Any claim for adjustment by UTSI resultingfrom a Change Request will be automatically waived unless asserted in writingby UTSI (a “UTSI Claim”) within [***] days from the date of receipt by UTSI ofthe Change Request.  UTSI will state theamount of such adjustment claimed either as part of the UTSI Claim, or at suchlater date (not to exceed [***] days from the date of receipt by UTSI of theChange Request) as UTSI may request as part of such UTSI Claim.

##  

## 23.3         Thepersonnel of each Party may from time to time render technical assistance orgive technical advice to, or effect an exchange of information with thepersonnel of the other Party concerning the subject matter of this Order.  However, UTSI will not deviate from therequirements of this Order by reason of such assistance, advice or exchange ofinformation, unless the deviation is incorporated into and authorized by aChange Request issued in accordance with the clauses herein.  Such assistance, advice or exchange ofinformation, shall not delete or in any way modify any of the rights orobligations of the Parties, express or implied.

##  

# **24.          GENERALPROVISIONS**

# ** **

## 24.1         NoLiability for Other Party’s Acts

##  

Neither party shall be liable for any losses, injuries, or damagescaused by or attributable to the acts and/or omissions of the other party, itsemployees, or its agents.

 

## 24.2         IndependentContractors

##  

The Parties hereto agree that they are independent contractors.  This Agreement shall not be construed tocreate or result in a partnership or joint venture between the Parties hereto,nor to make either party the agent of the other party.  This Agreement shall not create any thirdparty beneficiary rights.

 

18

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## 24.3         Notices

##  

Any notices, requests, demands or other communications required orpermitted under this Agreement shall be in writing and shall be sufficientlycommunicated if delivered (i) in person or by means of a recognizedcourier service or email with Delivery notice, (ii) sent by facsimile withwritten confirmation sent by regular airmail, or (iii) if sent byregistered airmail, return receipt requested, to the recipient party at itsaddress appearing in the preamble hereof or to such other address as such partymay have designated for such purpose by notice previously given to the otherparty in accordance with the terms hereof.

 

All email communication shall be deemed accepted if no notice of“failure” or “return” is received.  Allemails must be acknowledged by the recipient within 2 working days of thecommunication.

 

 
| **If to UTSI:** | Attention: Russell Boltwood, Legal Affairs                                                        |
|-----------------|---------------------------------------------------------------------------------------------------|
|            |                                                                                              |
|            | 1275 Harbor Bay Parkway

Alameda, Ca. 94502 USA

+1 510 864 8800 (Voice)

l +1 510 864 8802 (Fax) |
|            |                                                                                              |
| **If to TTL:**  | Attention: A.G Rao                                                                                |
|            |                                                                                              |
|            | G.M Corporate

UG Floor, K.L.K Estate, Fateh Maidan Rd.

Hyderabad - 500 001                      |

 

Notices shall be deemed to have been received if delivered in person,on the same day; if sent by facsimile, 24 hours after transmission; ifsent by registered mail, seven (7) days after deposit into the respectivenational mail Product.

 

## 24.4         SecurityInterest

##  

UTSI reserves, and TTL hereby grants to UTSI, a security interest ineach Product purchased and licensed and in any proceeds thereof until UTSI hasreceived payment in full.  TTL agrees atUTSI’s request to execute any and all financing statements and to take suchother action as UTSI may reasonably request to carry out the intent of thissection.

 

## 24.5         NoAssignment

##  

Neither party may assign its rights and/or obligations, hereunderwithout the prior written consent of the other party, which consent shall notbe unreasonably withheld, except in case where such assignment is pursuant to atransfer of all or substantially all of business and assets, whether by merger,sale of assets, sale of stock, or otherwise.

 

19

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## 24.6         Publicity

##  

The substance and timing of any written or other public disclosurerelating to this Agreement, in the form of a press release or similardisclosure shall be subject to the prior written approval of both Parties.

 

## 24.7         NoViolation of Applicable Law

##  

If any provision of this Agreement is held to be invalid under anyapplicable law, such provision shall be ineffective to the extent of suchviolation without invalidating other provisions of this Agreement.

 

## 24.8         ConflictingExhibits

##  

In the event that any provision of the Exhibits or any otherattachments to this Agreement are deemed to be in conflict with the provisionsof this Agreement, the provisions of this Agreement shall control.

 

## 24.9         NoWaiver

##  

Any failure by either party to enforce strict performance by the otherparty of any provision herein shall not constitute a waiver of the right tosubsequently enforce such provision or any other provision of this Agreement.

 

## 24.10       EntireAgreement

##  

This Agreement and the Exhibits hereto constitute the entire agreementbetween UTSI and TTL relating to the subject matter hereof and supersede allstatements, representations, and understandings, which have been made by eitherparty or their agents or representatives prior to the execution of thisAgreement.  No modification of thisAgreement shall be binding upon either party unless made in writing andexecuted on behalf of that party by its duly authorized representative.

 

## 24.11       Maybe Executed in Counterparts

 

This Agreement may be executed in counterparts and by facsimile suchthat when taken together the, counterparts shall be deemed a true original ofthe Agreement between the Parties.

 
| **For  Tata Teleservices Ltd.**              |   | **For  UTStarcom Inc.**                             |
|----------------------------------------------|--------|-----------------------------------------------------|
|                                         |   |                                                |
| **By  it’s Authorised Representative:** |   | **By  it’s Authorised Representative:**        |
|                                         |   |                                                |
| /s/  Ajay Madan                              |   | /s/  Ruchir Godura                                  |
|                                         |   |                                                |
| Mr. Ajay Madan                               |   | Mr. Ruchir Godura                                   |
|                                         |   |                                                |
| (Chief Technical  Officer)                   |   | (Country Manager &  Director — South Asia) |
|                                         |   |                                                |
| Witness:                                     |   | Witness:                                            |
|                                         |   |                                                |
| /s/ A. G Rao                                 |   | /s/ Yogesh  Bijlani                                 |
|                                         |   |                                                |
| Mr. A.G Rao                                  |   | Mr. Yogesh Bijlani                                  |

 

20

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Schedule A to Equipment Agreement

 

[***]

 

 

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Schedule B to the EquipmentAgreement

 

**END-USERSOFTWARE LICENSE**

 

The following terms and conditions shall constitute the license(“License”) by which software that accompanies, whether by being embedded intoa hardware element or component or by means of a separate media such asdiskette or compact disc, or otherwise (“Software”), is transferred inconnection with products (“Products”) supplied by Seller (“Licensor”).

 

It is hereby agreed that provisions of this license agreement aresubordinate to provision relating to Software as contained in the Agreementdated 4 February 2003 between UTSI and TTL.  In the event of any inconsistency between this license agreementand the above mentioned agreement, the provisions of the Agreement dated 4February 2003 between UTSI and TTL shall prevail.

 

Grant.  The person who acquires any Product (“Licensee”) may install anduse the Software in machine-readable form only, solely on the Products, andsolely for the purpose of operating the Products.  Licensee may copy the Software only for backup purposes, providedthat Licensee reproduces all copyright and other proprietary notices that areon the original copy of the Software.

 

Restrictions.  Licensee may not use, copy, modify, ortransfer the Software, or any copy thereof, in whole or in part, except asexpressly permitted by this License. Licensee may not reverse engineer, disassemble, decompile, or translatethe Software, or otherwise attempt to derive the source code of the Software,or permit any other person to do any of the foregoing.  Any attempt to transfer any right, duty orobligation in this License is void. Licensee may not rent, lease, loan, resell for profit, or distribute theSoftware, or any part thereof.  Licensemay not modify or create derivative works based on the Software in whole or inpart.  Ownership.  The Software is not sold but is onlylicensed to Licensee for use only in accordance with this License, and Licensorreserves all rights not expressly granted to Licensee.

 

Copyright.  The Software is protected by United States copyright laws andinternational treaty.  The Software isowned by Licensor or its suppliers or licensors.

 

Term.  This License will terminate immediately upon notice to Licenseeif Licensee materially breach any term or condition of this License. Licenseeagrees upon termination promptly to destroy the Software and all copiesthereof.

 

Warranty Disclaimer.  THE SOFTWARE IS PROVIDED TO LICENSEE “AS IS”AND LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES INCLUDING THEIMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE ANDNONINFRINGEMENT.

 

Limitation of Remedies.  IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERSBE LIABLE TO LICENSEE OR TO ANY OTHER PERSON FOR [***].

 

Export Law.  The Software and related technology aresubject to U.S. export control laws and may be subject to export or importregulations in other countries. Licensee agrees strictly to comply with

 

 

----

 

all such laws and regulations and acknowledge that Licensee has theresponsibility to obtain such licenses to export, re-export or import as may berequired.

 

General.  This License will be governed by the laws of the State ofCalifornia, USA.  The Federal and StateCourts located in San Francisco County, California, USA shall have solejurisdiction over all disputes arising in connection with this License.  If any provision of this License is held tobe unenforceable, that provision will be removed and the remaining provisionswill remain in full force.  This Licenseis the complete and exclusive statement of the agreement between Licensee andLicensor and supersedes all prior agreements, oral or written, and all othercommunications between Licensee and Licensor in relation to the subject matterof licensing the Software.

 

Licensee agrees to the terms and conditions set forthabove in this License as of the effective date of this agreement date statedbelow:

 

2

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Schedule C to the EquipmentAgreement

 

[***]

 

 

----

 

Schedule D to the EquipmentAgreement

 

**MUTUALNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT**

 

THIS AGREEMENT IS ENTERED INTO BY AND BETWEEN SELLER, INC.,1275 HARBOR BAY PARKWAY, SUITE 100, ALAMEDA, CA 94502 (“Seller”) ANDBuyer (“Company”).

 

1.                                       ThisAgreement shall apply to all confidential and proprietary information disclosedby the parties to the other, including but not limited to confidential productplanning information, product specifications and other proprietary and businessand technical information (hereinafter referred to as “ConfidentialInformation”).  As used herein,“Confidential Information” shall be in written, graphic, machine recognizableor other tangible or electronic form and marked “Confidential” or “Proprietary”or shown by implication that it is imparted or disclosed in confidence, or ifdisclosed orally or visually, shall be reduced to writing in summary form,identified as “Confidential Information” and sent to the Receiving Party within15 days following such oral or visual disclosure.

 

2.                                       Sellerand Company mutually agree to hold the other party’s Confidential Informationin strict confidence and not to disclose such Confidential Information to anythird parties except after receiving prior consent by the disclosing party inwriting.  Seller and Company shall usethe same degree of care to avoid disclosure of such Confidential Information aseach employs with respect to its own proprietary information of like importanceor a greater degree if reasonable.

 

3.                                       Sellerand Company agree that they will not use the other party’s ConfidentialInformation for any purpose other than for the intended purposes, without theprior written permission of the other party.

 

4.                                       Sellerand Company mutually agree they may disclose such Confidential Information totheir respective responsible employees, including employees of other Tata groupcompanies or any other company in whom Tata Group has a management right orownership stake, with a bona fide need to know, and Seller and Company agree toinstruct all such employees not to disclose such Confidential Information tothird parties and will ensure that such employees have agreed to similarnon-disclosure provisions with Seller or the Company, its own employeesrespectively.

 

5.                                       Informationshall not be deemed Confidential Information and the receiving party shall haveno obligation regarding any information for which it can be proven in writtendocumentation (a) is already known to the receiving party at the time thatit is disclosed without use of the Confidential Information; (b) is orbecomes publicly known through no wrongful act contrary to this Agreement ofthe receiving party; (c) is rightfully received from a third party withoutobligation of confidence or restriction on disclosure from receiving party andwithout breach of this Agreement; (d) is independently developed by thereceiving party without use of Confidential Information; (f) is disclosedpursuant to a requirement of a valid court order

 

 

2

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provided that the Receiving Party provides(i) prior written notice for the disclosing party of such obligation and(ii) the opportunity to oppose such disclosure and (iii) it isdisclosed for the extent and purposes or the order only.

 

6.                                       AllConfidential Information shall remain the property of the disclosing party, andupon the written request of either party, the other party shall promptly returnto the disclosing party all Confidential Information disclosed to it and allcopies thereof or at the disclosing party’s option shall destroy all suchConfidential Information and shall provide the receiving party with acertificate that all Confidential Information has been destroyed.

 

7.                                       Sellerand Company recognize and agree that nothing contained in this Agreement shallbe construed as granting any rights, by license or otherwise to anyConfidential Information disclosed pursuant to this Agreement.

 

8.                                       Thisagreement shall be binding upon and inure to the benefit of the party’ssuccessors and assigns.  This Agreementshall not be assignable by either party for the written consent of the otherparty, and any purported assignment not permitted hereunder shall be void.  This document constitutes the entireagreement between the parties with respect to the subject matter hereof, andshall supersede all previous, understandings and agreements, either oral orwritten, between the parties or any official or representative thereof.

 

9.                                       Theobligations undertaken by each party pursuant to this Agreement shall remain ineffect for three years from the last date of disclosure of ConfidentialInformation, and shall survive any termination or expiration hereof.

 

10.                                 Noneof the Confidential Information disclosed by the parties constitutes anyrepresentation, warranty, assurance, guarantee or inducement by either party tothe either with respect to the infringement of trademarks, patents, copyrights;any right of privacy; or any rights of third persons.

 

11.           The parties heretoare independent contractors.

 

12.                                 ThisAgreement may be modified only by written amendment signed by bothparties.  This Agreement shall beconstrued in accordance with the laws of India without regard to the conflictof laws provisions and shall be subject to the jurisdiction of the courts ofIndia.

 

13.                                 Thereceiving party may make copies of Confidential Information only to the extentnecessary for the purpose of this Agreement provided that the copies are marked“Confidential” and treated as Confidential Information in accordance with theterms of this Agreement.

 

14.                                 Accordingly,nothing in this Agreement, will be construed as a representation or inferenceprohibiting either party from developing products, having products developedfor it, from entering into joint ventures, alliances, or licensingarrangements. that all without violation of this Agreement, compete with theproducts or systems embodying the Confidential Information.

 

 

3

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Schedule F to the EquipmentAgreement

 

 

[***]

 

Acceptance Test Plan

 

4

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Table of Contents

 

[***]

 

 

----

 

**Purpose of document**

 

This document shall describe the acceptance test plan for a standard[***] installation.  Included aredescriptions of the necessary tools, preparation, installation and steps to dothe tests.  This document is provided asa reference to the field engineers to complete system acceptance testing withthe customer.

 

# **General**

# ** **

The tests will be performed on [***] at exchange and remoteterminals.  Each test section iscomposed of the title of the test, purpose, description, equipment,documentation, pre-requisites and expected results.

 

***This is a verydetailed acceptance test plan and is expected that all the tests mentioned herewill be conducted***[***]***.  Foradditional systems, the routine acceptance test plan shall be followed***.

 

***Also, thisacceptance test plan is for***[***]***. The actual site acceptance shall be limited to the***[***].

 

Before the actual verification tests, it will be assumed that:

 

•                  The system wasproperly commissioned and working normally.

•                  The workingsystem will guarantee the proper inter working tests, that is, [***].

•                  The requiredtest equipment and other components that are necessary to configure the systemshould be in place before proceeding with the actual verification tests.

 

 

[***]

 

 

2

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